Moti Lal Agarhari Vs. Champa Lal - Court Judgment

LegalCrystal Citation

legalcrystal.com/480803

Subject

Civil

Court

Allahabad

Decided On

Jul-04-1929

Reported in

AIR1929All795; 118Ind.Cas.237

Appellant

Moti Lal Agarhari

Respondent

Champa Lal

Excerpt: - - 6. the lower appellate court has held that the decree sought to be executed was a joint decree, and that though moti lal was not properly made a party to the first application for execution, yet that application was a good application against the other judgment-debtors and, as such, in view of the provisions of expln. in other words that application was a good application as against two out of three co-judgment-debtors. but after giving my best consideration, i have come to the conclusion that the decree-holder is entitled to the benefit of the provisions of that clause. act, are satisfied in the present case, and as such, the second application for execution is within time. 13. in my judgment the decree of the courts below are perfectly correct and i dismiss the appeal with costs......execution second appeal and arises under the following circumstances:2. on 7th december 1920, the decree-holder respondent obtained a simple money decree against three brothers named hira lal, panna lal and moti lal. panna lal and moti lal were minors on the date of that decree. the decree provided that the person of panna lal and moti lal and their shares in the ancestral house will be exempt from the operation of the decree. the decree-holder filed an appeal against that decree and, on 7th july 1921, the appellate court modified the decree of the trial court to this extent that it passed a decree against all the three brothers with the proviso, that so far as panna lal and moti lal were concerned, the decree money will be recoverable only from the family property in their hands.3. the.....

Judgment:

Iqbal Ahmad, J.

1. This is a judgment-debtor's execution second appeal and arises under the following circumstances:

2. On 7th December 1920, the decree-holder respondent obtained a simple money decree against three brothers named Hira Lal, Panna Lal and Moti Lal. Panna Lal and Moti Lal were minors on the date of that decree. The decree provided that the person of Panna Lal and Moti Lal and their shares in the ancestral house will be exempt from the operation of the decree. The decree-holder filed an appeal against that decree and, on 7th July 1921, the appellate Court modified the decree of the trial Court to this extent that it passed a decree against all the three brothers with the proviso, that so far as Panna Lal and Moti Lal were concerned, the decree money will be recoverable only from the family property in their hands.

3. The first application for execution was filed on 1st February 1924. All the three brothers were arrayed as judgment-debtors in that application. Moti Lal by that time had attained majority, but he was arrayed as minor in the said application. Notice of the said application was issued to the judgment-debtors on 15th February 1924. That application was dismissed for default.

4. The decree-holder then filed a second application for execution on 7th February 1927. It would be noticed that this application was within three years from the date of the issue of the notice of the first application and, beyond three years from the date of the filing of that application.

5. Moti Lal, judgment-debtor-appellant, objected to the execution of the decree on the ground that the application for execution was time barred. This contention of Moti Lal has been overruled by both the Courts below and, he has come to this Court in second appeal.

6. The lower appellate Court has held that the decree sought to be executed was a joint decree, and that though Moti Lal was not properly made a party to the first application for execution, yet that application was a good application against the other judgment-debtors and, as such, in view of the provisions of Expln. 1 to Clause 7, Art 182, Sch. 1, Dim. Act, the first application for execution gave a fresh start to the period of limitation as against all the judgment-debtors. It further held that the issue of the notice dated 15th February 1924 also entitled the decree-holder to compute the period of limitation from that date: vide Clause 6, Article 182.

7. The learned Counsel for the appellant has taken exception to these conclusions of the lower appellate Court. He argues that, inasmuch as the decree sought to be executed provided that the decretal amount, so far as Panna Lal and Moti Lal were concerned, could be recovered only from the family property in their hands, and whereas in the case of Hira Lal the decree was uncontrolled by any such condition, it follows that decree was not a joint decree against all the three brothers. He further argues that, in order to invite the application of the explanation to Clause 7, Article 182, it is necessary that the decree should be executed only against one out of many co-judgment debtors, and as in the present case the first application for execution was against all the three judgment-debtors the decree-holder is not entitled to the benefit of that explanation. I am unable to agree with these contentions.

8. The mere fact that the decree as against Panna Lal and Moti Lal could be executed only against the family property in their hands, does not affect the fact that all the three brothers were jointly liable for the decretal amount The decree was a joint decree against all the three and, all of them were equally liable to satisfy that decree, with this reservation that the persons of Panna Lal and Moti Lal were exempt, and they could not be arrested in execution of that decree. In other words, though the decree differentiated between the three brothers as regards the mode of execution, it did nothing of the sort so far as their joint liability for the decretal amount was concerned.

9. The argument that, as the first application for execution was an application against all the three judgment-debtors, apply Expln. 1 to Clause 7, Article 182 does not appeal to me. If the argument of the learned Counsel for the appellant that Moti Lal was not properly made a party to the first execution application is correct, then it necessarily follows that the application for execution was valid only so far as the remaining two brothers were concerned. In other words that application was a good application as against two out of three co-judgment-debtors. That being so, Expln. 1, Article 182 applies to the case, and the Courts below were right in so holding.

10. But as already stated the present application for execution is beyond three years from the date of the first application, and unless the decree-holder is entitled to the benefit of Cl 6, Article 182, the present application is time-barred. The question, whether or not Clause 6 applies to the facts of the present case, is not free from difficulty. But after giving my best consideration, I have come to the conclusion that the decree-holder is entitled to the benefit of the provisions of that clause.

11. It is true that notwithstanding the fact that Moti Lal, on the date of the first application for execution, hid attained majority, he was described as a minor in the said application. But the mere fact, that a judgment-debtor, who had attained majority, was described as a minor in the execution application, does not, in my opinion, lead to the conclusion that judgment-debtor was not a party to the execution proceedings.

12. There is a distinction between cases in which a minor is impleaded as a major and cases in which a person, who has attained majority, is impleaded as a minor. In the former case the minor cannot be said to have been validly impleaded, for the simple reason, that there is a statutory prohibition to sue on behalf of or against a minor without a next friend or guardian for the suit of such minor. But in the latter case if the person, who has attained majority and is by accidental mistake impleaded as a minor, has notice of the proceedings against him, it cannot be said that he was not a party to, and will not be bound by the result of, those proceedings. Whether he is or is not a minor must be a fact within his knowledge and, therefore, on receipt of notice of proceedings against him, it is perfectly within his power to go to Court and defend himself and protect his rights. In the present case Moti Lal whether a minor or a major, was made a party and notice of the application was issued to him. That being so, the decree-holder is entitled to compute the period of limitation from the date of the issue of the notice. In other words it cannot be disputed that a notice against Moti Lal to show cause why the decree should not be executed against him was issued by the Court on 15th February 1924, and now the decree-holder applies to execute the decree against him. That being so, the two conditions requisite for the application of 01. 6, Article 182, Lim. Act, are satisfied in the present case, and as such, the second application for execution is within time.

13. In my judgment the decree of the Courts below are perfectly correct and I dismiss the appeal with costs.